Jackson M. Johnson v. Charles Shinkle.
1. Ejectment—conveyance by plaintiff, pending mil. A conveyance by the plaintiff in an action of ejectment, pending suit, will not defeat his right of recovery, which in such case would enure to the benefit of his grantee.
2. Writ of possession—when to be awarded. Notwithstanding a plaintiff in ejectment makes a conveyance of the land, pending the suit, if the finding upon the trial is in his favor, judgment should be rendered for a recovery of possession, and that the plaintiff shall have his writ of habere facias possessionem.
Appeal from the Circuit Court of Montgomery county; the Hon. Edwabd Y. Rice, Judge, presiding.
This was an action of ejectment commenced in the Circuit Court of Madison county, and the cause was taken hy change of venue to the Circuit Court of Montgomery county, where a trial was had before the court, a jury having been waived. It appearing, that subsequent to the commencement of the suit, the plaintiff had sold and conveyed the land in controversy, the court rendered the following judgment:
“ The Court finds the said defendant guilty of unlawfully withholding the possession of said premises in the declaration mentioned, and that the plaintiff was entitled to the same in fee simple at the time of the commencement of this suit, but that he is not now entitled to possession of the same, and it is considered and adjudged that plaintiff have judgment to that effect against the said defendant, and also for his costs by him in that behalf expended, and execution therefor.” .
Whereupon the plaintiff moved for and prayed to have a writ of possession awarded in his favor, directing the sheriff of Madison county, Illinois, (the county in which said lands are *138situated,) to put him in possession of the same ; which, after argument heard thereon, the Court refused to grant and allow.
The refusal to award the writ of possession, is the error relied upon for a reversal.
Messrs. J. & D. Gillespie, for the appellant.
Mr. T. G. C. Davis, for the appellee.
Mr. Justice Lawrence
delivered the opinion of the Court:
The question presented by this record was decided at the April term, 1867, in Mills v. Graves, 44 Ill. 50. "We there held that a conveyance by the plaintiff in an action of ejectment, pending the suit, would not defeat his right of recovery, which would enure to the benefit of his grantee.
The circuit court should have rendered a judgment for the recovery of the possession, and that the plaintiff have his writ of habere facias possessionem.
The judgment is reversed and the cause remanded.
Judgment reversed.